Is It Better to Jail Innocents or Let Terrorists Go Free? Books

David K. Shipler who wrote "The Rights of the People: How Our Search for Safety Invades Our Liberties." Photographer: Deborah I. Shipler/Random House via Bloomberg

April 18 (Bloomberg) -- Patiently and at length, David
K. Shipler documents the crumbling of American freedoms in
“The Rights of the People: How Our Search for Safety
Invades Our Liberties.”

Not that Americans seem to care that much. Two
widespread fears -- of crime and of terrorism -- have led
us willingly (if Congressional votes are any indicator) to
give up freedoms protected by the Bill of Rights.

Shipler accompanies a Washington, D.C., police patrol
in search of illegal guns to show how the city’s black
underclass has forfeited its Fourth Amendment protection
from unreasonable search and seizure.

He liked the cops he rode around with. But when he saw
young men docilely submitting to (mostly fruitless)
searches they had the right to refuse, he recognized the
world that Justice William O. Douglas had foreseen in a
1968 dissent:

“If the individual is no longer to be sovereign, if
the police can pick him up whenever they do not like the
cut of his jib, if they can ‘seize’ and ‘search’ him at
their discretion, we enter a new regime.”

In the hunt for terrorists, Shipler points out,
intelligence isn’t a sure thing: “If the world’s major
intelligence agencies” could blunder so badly about Saddam
Hussein’s arsenal, “then how can mid-level operatives
reliably conclude that someone is a terrorist?”

Mistaken Identity

They can’t, and he has assembled the horror stories to
prove it -- like the case of Brandon Mayfield, the innocent
Oregonian who was linked by inept FBI lab work to the 2004
Madrid train bombings.

Unfortunately for Mayfield, not only was he Muslim; he
had once taken flying lessons and his 12-year-old daughter
had researched Spain on the family computer. As a result,
he was jailed for mass murder and faced the very real
prospect of execution -- until the Spanish authorities, who
had never swallowed the FBI’s case against him, managed to
track down the real culprits.

The Constitution is clear, Shipler argues: “Our system
is founded on the premise that it is far worse to convict
wrongly than to fail to convict at all.”

Shipler isn’t cavalier about the threats we face
(though he’s skeptical about the seriousness of most of the
“conspiracies” that massive surveillance has turned up).
“Aggressive investigation,” he concedes, “is legitimate and
necessary.”

The Framers

That it’s also prone to error is something the framers
foresaw, which is why they left us “a set of guarantees
that protect our rights and simultaneously provide the best
possible accuracy in criminal justice ... Observing the
rights leads to reliability in the process.”

I wish I could share his confidence that the “virus”
of “unconstitutional expedience” will eventually succumb to
“the country’s self-correcting immune system,” as it has
repeatedly in the past, starting with the negative reaction
to the Alien and Sedition Acts of 1798 -- a factor in the
election of 1800, which gave Thomas Jefferson the
presidency.

Shipler by no means lays all the blame for the current
erosion of the Bill of Rights on the George W. Bush
administration (though he does liken it more than once to
the Soviet leadership of the 1970s). He writes with
asperity of President Barack Obama and the Democrats,
noting that the 2001 Patriot Act sailed through the Senate
with one dissenting vote. And he scoffs at the “sophistry”
of the Supreme Court, going back for decades, as “a curse
on the Bill of Rights.”

Though Shipler is an undisguised liberal, I suspect
his arguments will speak to anyone with a drop of
libertarian blood -- which is to say, most Americans. His
book is timely, eloquent, solid, fair-minded and, on almost
every page, upsetting. I wish I could add “witty” and
“scintillating” to that list, but “important” will have to
do.

“The Rights of the People” is from Knopf (366 pages,
$26.95). To buy this book in North America, click here.

(Craig Seligman is a critic for Muse, the arts and
leisure section of Bloomberg News. The opinions expressed
are his own.)